1. EVC electronic GmbH, Am Pfauenzehnt 11a, 46539 Dinslaken, Germany ("EVC”) is a leading supplier of chip tuning solutions for automobiles. EVC developed and owns all versions of the WinOLS software ("WinOLS”), a high-performance software especially designed for developing chip tuning files. EVC sells WinOLS licenses chiefly via the Internet and makes the software available for download against payment.
2. WinOLS includes a feature which enables customers to offer compilations of chip tuning files as well as characteristic curve data ("tuning projects”) for sale ("Seller”) which can be purchased by other customers by download ("Purchaser”; Seller and Purchaser hereinafter individually referred to as "User” and jointly as "Users”). EVC is not a party to these sales transactions but only provides the technical and organizational equipment and framework (especially the server where the Seller makes the tuning projects available) to enable the sale of tuning projects ("Platform”).
II. Scope of application
B. Sale and licensing of WinOLS
This Part B governs the sale of WinOLS as well as the grant of rights by EVC to use this software under and according to the terms and conditions set out hereinafter.
2. The nature and functionality of WinOLS is exhaustively and conclusively described in the user documentation. The information and data contained therein constitute performance specifications but not express warranties within the meaning of a guarantee of a certain product quality ("Garantie”). Any guarantee must be explicitly designated as such.
3. EVC makes WinOLS and the user documentation available to the User by download from the homepage at www.evc.de. The download requires prior creation of a user account according to sec. B II.
4. Installation and configuration services are not included in the contract.
II. User account
1. The user, for creating the user account, transmits to EVC the following data: company name, postal address, email address and telephone number.
3. Activation and maintenance of the user account are free of charge for the User.
4. The User is to communicate to EVC complete and correct data required for opening the user account; in the case of a change of the data, the User shall update and adjust them in the user account without undue delay ("unverzüglich”).
5. Users are obliged to keep the access passwords chosen upon registration confidential and carefully protect the user account against unauthorized access. Moreover, Users are obliged to immediately notify EVC of any suspected misuse of the user account by third parties.
6. Every User undertakes to create only one user account. A user account cannot be transferred to another person.
7. EVC reserves the right to delete user accounts after a reasonable period if the registration procedure has not been duly completed.
III. Grant of rights
2. The User has no right to claim delivery of the source code.
3. The User is entitled to make a back-up copy if this is required for securing the future use of the software. The User shall apply to the back-up copy the clearly visible note "back-up copy” as well as a clearly visible copyright notice of the producer.
4. The User is only entitled to decompile, copy or reproduce WinOLS if and to the extent this is provided for by law. This shall however only apply in the case that EVC has failed to provide the User with the required information within a reasonable period from User’s request.
5. The User is entitled to make the purchased copy of WinOLS available, and also deliver the user documentation, to a third party for permanent use. In this case, the User shall irrevocably cease to use the software, remove all installed software copies from the User’s computers and also delete any further software copies from other data carriers or deliver them to EVC unless the User is obliged by law to retain them for a longer period.
6. If the User uses WinOLS beyond the rights of use purchased in terms of quality (as regards the nature of the permitted use) or quantity (as regards the number of licenses purchased), User shall without undue delay ("unverzüglich”) purchase the rights required for such use. If the User fails to do so, EVC will assert the rights and claims to which EVC is entitled in this case.
7. It is forbidden to remove or alter any copyright notices, serial numbers or other features of WinOLS intended as program identifiers.
IV. Purchase price and maturity
The purchase price for WinOLS depends on the scope of functions and features provided; it is stated on the homepage at www.evc.de. The purchase price is due for payment upon download of WinOLS.
2. The User is obliged to check WinOLS for obvious defects without undue delay ("unverzüglich”) after receipt and report any such defects found to EVC without undue delay ("unverzüglich”); otherwise any warranty for these defects shall be deemed forfeited. The foregoing shall apply accordingly in cases where a defect becomes apparent later. § 377 HGB (German Commercial Code) shall apply.
3. In the case of a defect in quality, EVC is first entitled to provide subsequent performance ("Nacherfüllung”); for such purpose EVC may in its discretion either remedy the defect (subsequent remedy – "Nachbesserung”) or deliver a substitute ("Ersatzlieferung”). If EVC decides to deliver a substitute, the User may possible have to adopt a new software version if available unless this would cause unreasonable disadvantages to the User. In the case of defects in title, EVC shall in its discretion either procure for the User a legitimate possibility to use WinOLS or modify the software such that it does no longer involve any infringement of third-party rights.
4. The obligation of EVC to provide subsequent remedy ("Nachbesserung”) shall be deemed duly fulfilled by EVC making up-dates with an automatic installation routine available for download from the homepage at www.evc.de and providing the User with telephone support to solve any possible installation problems.
5. The right of the User in his/her discretion either to reduce the purchase price ("Minderung”) or to withdraw from the contract ("Rücktritt”) remains unaffected in case the subsequent remedy or substitute delivery has failed twice. The User shall however not be entitled to withdraw from the contract for insignificant defects. Where the User asserts claims for damages or reimbursement of futile expenses, EVC shall be liable according to the provisions of Part E.
6. Any claims of the User for defects in quality or title shall become time-barred after one year; this shall not apply in the cases of sec. E 1 a) to d). Where WinOLS is sold on a data carrier, the limitation period shall run from the time of delivery; where WinOLS is sold by download from the Internet, the limitation period shall run from the time of communication and activation of the access data for the download area.
C. Terms and conditions for using the Platform for selling tuning projects
This Part C governs the Interned-based sale of tuning projects from the Seller to the Purchaser ("project purchase contract”) which is performed via the EVC platform.
I. Scope of performance
1. EVC makes servers and software available to the Users which the Sellers may use to offer tuning projects based on WinOLS for sale by upload and the Purchaser may purchase these tuning projects by download ("platform-based services”).
2. The use of the platform-based services is subject to the User purchasing the WinOLS software and the rights of use according to sections B I and II and – in cases where the User is the Seller – subject to EVC activating for the Seller the feature integrated in WinOLS which enables the sale of tuning projects via WinOLS ("Reseller Feature”) after the Seller has paid the setup fee according to sec. C 6 I.
3. EVC makes the Platform and its functions available without warranting a certain degree of availability. EVC is not obliged to maintain and keep the Platform available at all times. Interruptions, disturbances or temporary suspension of service provision by EVC and of the availability of the Platform may in particular occur due to necessary maintenance work or compelling safety-related reasons or incidents beyond the control of EVC (such as unauthorized access to the servers provided by EVC, failure of public communication networks or of the Internet, power outage or similar incidents); EVC does not accept liability in these cases unless EVC has willfully or negligently caused any of the foregoing circumstances.
4. EVC may at any time temporarily suspend or restrict access to the Platform by the Users if this is required for compelling security reasons such as in the case of cyber attacks (e.g. Denial-of-Service attacks, other server overload cause by third parties) or to ensure the integrity of the servers used for operating the Platform and/or to carry out urgent technical, in particular security-related measures (such as security back-ups).
5. EVC uses state-of-the-art technical security systems to protect the tuning projects which the Users offer on the Platform; this is in particular true for the servers provided by EVC and for other hardware and software used for operating the Platform. However, EVC and the User are agreed that, with regard to the quality of the platform-based services provided by EVC, EVC is not liable to the User to ensure absolute protection against third-party attacks. Thus, EVC is in particular not liable to the User for any kind of third-party attacks which enable illegal access to the tuning projects of a User and misuse of such tuning projects by third parties, such as for the third party’s own commercial purposes.
II. Registration as User and conclusion of the User Contract
1. If a User wants to use the Platform for purchasing or selling tuning projects, he/she must register as a User first; the registration is done by opening a User account according to sec. B II. The contract between EVC and the User for use of the platform-based services ("User Contract”) is deemed concluded as soon as EVC has activated the user account.
2. If a User wants to sell tuning projects, the Reseller Feature must be activated in addition to the user account. Activation of the Reseller Feature requires an appropriate request by the User to be addressed to EVC in text form ("Textform”) (e.g. by email). EVC may decide on the activation in its sole discretion. The User is not entitled to the activation of the Reseller Feature.
III. Project sales contracts between Users
1. A contract for the sale of a tuning project is concluded by the Seller offering a tuning project by upload to the Platform (offer) and by Purchaser’s download of the tuning project by clicking the appropriate button (acceptance); the offer shall be deemed accepted already upon clicking the "purchase” button.
2. Any contractual and/or other liability of EVC under or in connection with the project sales contracts, including but not limited to liability for non-performance, late or improper performance (e.g. defects in quality or title of the tuning projects, tuning projects are not usable for the Purchaser in commercial or other respect) is therefore excluded. The Seller shall indemnify, and hold harmless, EVC and its employees and/or agents from any and all claims howsoever asserted against EVC by the Purchaser, the Purchaser’s customers or other third parties for defects in quality or title of the tuning projects; the obligation of the Seller to indemnify and hold EVC harmless is subject to the regulation in sec. C VII.
3. Payment transactions shall be made directly between the Seller and the Purchaser. The Users may either (a) use credit points or (b) engage the payment service provider Concardis GmbH.
a) Credit points: The Purchaser purchases credit points (Credit Points) from the Seller and pays the purchase price directly to the Seller; this payment transaction as agreed between the Seller and the Purchaser (e.g. bank transfer, PayPal etc.) is not executed via the Platform. The Seller credits the Purchaser for the Credit Points by an appropriate feature integrated in WinOLS.
b) Concardis GmbH: EVC has entered into a framework agreement with the payment service provider Concardis GmbH; the latter provides services for payment transactions relating to the project sales contracts between Users. Each of the Seller and Purchaser shall conclude a separate payment services agreement with Concardis GmbH for the execution of a certain payment transaction; Concardis GmbH then executes the transaction for purchase price payment between the Purchaser and the Seller. EVC, on behalf of the Purchaser or EVC, provides Concardis GmbH with the information and data required for the execution of the payment transaction according to this sec. C III 3 b). The Users hereby explicitly authorize EVC to disclose, transfer, process and transmit any relevant information and data (including but not limited to payment amounts, user data and project data) to Concardis GmbH and the Users hereby explicitly consent to the said disclosure, transfer, processing and transmission. Any consents by the Users which may be required under data protection law are also deemed granted hereby to the extent required.
4. The Seller is liable to EVC to remove any personal data of third parties which may be contained in the tuning projects before the projects are made available on the Platform; the Seller is further liable to indemnify and hold EVC harmless, according to the provisions of sec. C VII, from any and all third-party claims for breach of the applicable data protection law.
IV. Basic principles of use
1. The Users acknowledge that EVC itself does not offer tuning projects for sale, does not purchase offered tuning projects and does not become party to the project sales contracts concluded directly and exclusively between the Users of the Platform. The Sellers have sole responsibility for the tuning projects they offer on the Platform. Their responsibility comprises all project contents.
2. In particular, the User is not entitled to use the Platform with unlawfully obtained WinOLS licenses (e.g. after removal of the producer’s copy protection (cracking)).
3. The Seller assures and warrants to EVC that the tuning projects which the Seller offers on the Platform
a) do not infringe third-party rights, in particular industrial property rights, and that the Purchaser can use the tuning projects without infringing third-party rights,
b) do not contain personal data,
c) are not contrary to the law,
d) are compatible with the WinOLS Software,
e) contain information on the vehicle manufacturer, model, engine performance and type of control unit to enable targeted search and unambiguous identification by the Purchasers,
f) do not in any way disturb or impair, or otherwise cause adverse effects to, the functionality of the Platform and/or the WinOLS software and
g) do not contain any software viruses, worms, Trojans or other malware.
4. The Users undertake to conclude and execute the project sales contracts exclusively via the Platform provided by EVC.
V. Right of change
EVC has the right at any time to change, alter or modify the Platform and certain functionalities and to discontinue the operation of the Platform or parts thereof, subject to reasonable prior notice; EVC will in all cases consider the legitimate interests of the Users. EVC in particular reserves the right to make changes for adjusting the system to the state of the art, for system optimization, in particular for improving the user-friendliness, as well as changes necessary for debugging/error correction, updating and completion, program optimization or for licensing reasons.
VI. Fees and compensation
1. As consideration for the activation of the Reseller Feature, EVC receives a setup fee which registered Users can see on the homepage at www.evc.de. The setup fee falls due upon successful activation of the Reseller Feature and is payable within 14 calendar days from invoicing.
2. The Seller shall pay to EVC a commission for every project sales contract concluded between the Seller and the Purchaser according to sec. C III; registered Users can see the commission to be paid from time to time on the homepage at www.evc.de. EVC shall issue to the Seller, by no later than the 15th of every calendar month, a collective invoice stating the total commission payable for all sales of tuning projects concluded by the Seller in the previous month. The collective invoice shall be sent to the Seller electronically to the email address stored in the Seller’s user account. The Seller shall use no payment methods other than those stated in the invoice. The commission payable to EVC falls due upon conclusion of the project sales contract and is payable within 14 calendar days from invoicing.
2. In addition, the User undertakes to reimburse EVC for all costs and expenses incurred in connection with the assertion of claims by third parties. The reimbursable costs and expenses shall also include the costs of reasonable legal defense.
3. If claims are asserted against EVC by third parties, the User shall provide EVC without undue delay ("unverzüglich”) with all – true, correct and complete – information required for verifying the claims and for legal defense.
VIII. Removal of tuning projects; termination of the User Contract and deletion of user accounts
2. The User may terminate the User Contract at any time in text form ("Textform”), stating his/her user name, first name and last name and email address.
3. EVC may terminate the User Contract by one month’s notice in text form ("Textform”) (without stating the reasons for the termination) (ordinary termination). The User shall no longer be entitled to use the Platform after actual termination of the User Contract; EVC also reserves the right in the case of termination to delete the user account.
5. The termination of this User Contract, regardless of whether terminated by EVC or the User, shall be without prejudice to any other contracts concluded between EVC and the User (e.g. contracts for the purchase of WinOLS) or any project sales contracts concluded between Users.
D. Limitation of liability
1. EVC is liable to the Users without limitation
a) for willful or grossly negligent conduct,
b) for an injury of life or limb or health,
c) as provided for by the Produkthaftungsgesetz (German Product Liability Act) and
d) to the extent provided under any express warranty/guarantee given by EVC.
2. In the case of a slightly negligent breach of a duty which is essential for achieving the contract purpose ("Kardinalpflicht”), the liability of EVC shall be limited to such amount of loss or damage which is typical and foreseeable with regard to the specific type and nature of the relevant transaction.
3. Any further liability of EVC is excluded.
4. The foregoing limitation of liability shall also apply to any personal liability of the employees, representatives or executive bodies ("Organe”) of EVC.
5. EVC is free to raise the defense of contributory fault by the User. The User is in particular liable for data back-up and malware defense in accordance with the state of the art applicable at the time.
2. The parties are aware that WinOLS may be subject to export and import restrictions. It may in particular be subject to licensing requirements, or the use of the software or the appendant technologies abroad may be subject to restrictions. The User is obliged to comply with all export and import control regulations applicable in the Federal Republic of Germany, the European Union and the United States of America and with all other applicable regulations. Contract performance by EVC is subject to the condition that contract performance is not hindered or impeded by national or international export or import regulations or other statutory provisions.
4. The place of exclusive – also international – jurisdiction is Duisburg.